135 So. 3d 337
Fla. Dist. Ct. App.2013Background
- On Dec. 29, 2011, Jared Bretherick pointed a firearm at driver Derek Dunning on a busy six‑lane highway after Dunning allegedly drove aggressively, cut in front of the Brethericks, braked to a stop, and briefly exited his truck. Dunning was unarmed.
- Ronald Bretherick (father) displayed a holstered handgun first; Dunning returned to his truck and at one point rolled back 12–18 inches; several bystanders and family members called 911 and moved to safety.
- Jared (the Defendant) approached Dunning’s truck, pointed a gun, and told Dunning to move or be shot; Dunning testified he understood the statement to mean he would be shot if he moved.
- Jared was charged with aggravated assault with a firearm; he filed a pretrial motion to dismiss asserting statutory self‑defense immunity under Fla. Stat. § 776.032 ("Stand Your Ground").
- The trial court denied the motion after an evidentiary hearing; the appellate court considered (1) whether denial is reviewable pretrial by writ of prohibition, (2) whether the defendant bears the burden of proof at the pretrial immunity hearing, and (3) whether the defendant met that burden here.
- The trial court found (based on credibility determinations) that Dunning’s conduct did not amount to a forcible felony (e.g., false imprisonment), no one saw a weapon on Dunning, any alleged threat was no longer imminent, and the defendant’s fear was objectively unreasonable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper pretrial method for review of denial of motion to dismiss asserting Stand Your Ground immunity | State: denial involves trial court jurisdictional authority so review by prohibition is appropriate | Bretherick sought review of denial; argued entitlement to immunity should be resolved pretrial | Writ of prohibition is proper to obtain immediate pretrial review of denial of a statutory immunity motion (affirmed) |
| Who bears burden at pretrial evidentiary immunity hearing | State: Dennis v. State supports placing burden on defendant to prove entitlement by preponderance | Bretherick: statute’s plain language and purpose mean immunity should be effective without forcing defendant to prove it pretrial; burden should be on State | Court follows Dennis and places burden of proof on defendant to show immunity by preponderance of evidence; question certified to Fla. Supreme Court whether State should bear burden instead |
| Whether defendant met burden to establish immunity | State: evidence does not show imminent threat or forcible felony to justify deadly force | Bretherick: argued he reasonably feared imminent forcible felony (false imprisonment) and acted to defend family | Trial court’s factual findings (supported by substantial evidence) show no forcible felony, no weapon seen, no imminent threat; denial of motion to dismiss was proper (affirmed) |
| Certification of a controlling question to Fla. Supreme Court | N/A | N/A | Certified question: once defense raises issue, does State bear burden of disproving immunity at pretrial hearing as at trial? |
Key Cases Cited
- Mederos v. State, 102 So.3d 7 (Fla. 1st DCA 2012) (standard: trial court factual findings must be supported by competent, substantial evidence)
- Dennis v. State, 51 So.3d 456 (Fla. 2010) (approved Peterson procedure; held defendant must show entitlement to immunity by preponderance at pretrial hearing)
- Peterson v. State, 983 So.2d 27 (Fla. 1st DCA 2008) (procedural framework for pretrial evidentiary hearings on statutory immunity)
- Little v. State, 111 So.3d 214 (Fla. 2d DCA 2013) (district court recognizing prohibition as appropriate pretrial remedy)
- Joseph v. State, 103 So.3d 227 (Fla. 4th DCA 2012) (same: prohibition proper for immediate review of denial)
- Tsavaris v. Scruggs, 360 So.2d 745 (Fla. 1977) (Florida Supreme Court precedent using prohibition to review pretrial immunity claims)
- Rodgers v. Commonwealth, 285 S.W.3d 740 (Ky. 2009) (Kentucky Supreme Court held State bears burden to establish probable cause to proceed when immunity asserted)
- State v. Ultreras, 295 P.3d 1020 (Kan. 2013) (Kansas Supreme Court held burden rests with State at pretrial hearing interpreting statute like Florida’s)
- People v. Guenther, 740 P.2d 971 (Colo. 1987) (Colorado decision relied on by Peterson to place burden on defendant)
- Gray v. State, 42 So.3d 341 (Fla. 5th DCA 2010) (discussed in context of procedural approaches to immunity motions)